UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4127
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CAVARGGIO SHERNARD TURNER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-04-604)
Submitted: July 13, 2005 Decided: August 3, 2005
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated and remanded by unpublished per curiam
opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Elizabeth Jean Howard, OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Cavarggio Shernard Turner appeals his sentence of 165
months of imprisonment imposed after he pleaded guilty to one count
of being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2) (2000); one count of possession with
intent to distribute five grams or more of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(D) (2000);
and one count of using and carrying a firearm during and in
relation to, and possessing a firearm in furtherance of, a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (2000).
Counsel has filed an Anders1 brief asserting that there are no
meritorious issues for appeal, but questioning whether the district
court erred in sentencing Turner pursuant to a mandatory guideline
scheme. Turner was notified of his right to file a pro se
supplemental brief, but has not done so. The Government declined
to file a brief. Because we conclude that Turner’s sentence on
Counts One and Two was enhanced based upon facts not charged in the
indictment or admitted by Turner, we vacate his sentence and
remand.
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court applied the rationale of Blakely v. Washington, 542
U.S. 296 (2004), to the federal sentencing guidelines and held that
the mandatory guidelines scheme that provided for sentence
1
Anders v. California, 386 U.S. 738 (1967).
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enhancements based on facts found by the court violated the Sixth
Amendment. Booker, 125 S. Ct. at 746-48, 755-56 (Stevens, J.,
opinion of the Court). The Court remedied the constitutional
violation by severing and excising the statutory provisions that
mandate sentencing and appellate review under the guidelines, thus
making the guidelines advisory. Id. at 756-57 (Breyer, J., opinion
of the Court).
Subsequently, in United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005), this court held that a sentence that was
imposed under the pre-Booker mandatory sentencing scheme and was
enhanced based on facts found by the court, not by a jury (or, in
a guilty plea case, admitted by the defendant), constitutes plain
error that affects the defendant’s substantial rights and warrants
reversal under Booker when the record does not disclose what
discretionary sentence the district court would have imposed under
an advisory guideline scheme. Hughes, 401 F.3d at 546-56. The
court directed sentencing courts to calculate the appropriate
guideline range, consider that range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2004), and impose a sentence. If the district
court imposes a sentence outside the guideline range, the court
should state its reasons for doing so. Id. at 546.
Because Turner did not object to the sentencing range of
eighty-four to 105 months of imprisonment for Counts One and Two
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set forth in the presentence report and adopted by the district
court, we review the district court’s guideline calculation for
plain error. United States v. Olano, 507 U.S. 725, 732 (1993);
Hughes, 401 F.3d at 547. Under the plain error standard, Turner
must show: (1) there was error; (2) the error was plain; and
(3) the error affected his substantial rights. Olano, 507 U.S. at
732-34. Even when these conditions are satisfied, this court may
exercise its discretion to notice the error only if the error
“seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. at 736. (internal quotation marks
omitted).
Our review of the record leads us to conclude that
Turner’s base offense level for Counts One and Two was properly
determined and is supported by drug quantity alleged in the
indictment and included in the factual basis stated at Turner’s
plea hearing, with which he explicitly agreed. Turner also
received a two-level enhancement of his offense level for reckless
endangerment during flight, pursuant to U.S. Sentencing Guidelines
Manual § 3C1.2 (2003). We conclude that the imposition of this
enhancement was error under the Sixth Amendment as applied in
Booker, because the facts supporting this enhancement were not
alleged in the indictment or admitted by Turner.2 Because Turner
2
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Turner's sentencing.
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did not object to the presentence report, the district court was
not required to resolve any factual disputes concerning this
enhancement. If this enhancement were removed, Turner’s total
offense level would be twenty-three, and his sentencing range on
Counts One and Two seventy to eighty-seven months. Because the
105-month sentence imposed as to Counts One and Two does not fall
within the guideline range calculated without the two-level
enhancement, Turner’s sentence constitutes plain error that affects
his substantial rights and requires resentencing pursuant to Booker
and Hughes.
In his Anders brief, counsel asserts error in the
application of the guidelines as a mandatory sentencing
determinant, but does not specify any facts or statements by the
district court that indicated that it would possibly have imposed
a lesser sentence under an advisory scheme. Because Turner’s
sentence was affected by a Sixth Amendment error and he will be
resentenced under an advisory guideline scheme, we decline to
consider counsel’s argument.
As required by Anders, we have examined the entire record
and find no other meritorious issues for appeal. Accordingly, we
affirm Turner’s conviction, vacate his sentence and remand for
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is ‘plain’ if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).
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resentencing in accordance with Booker and Hughes. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART,
VACATED AND REMANDED
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